*1 McINTOSH, Appellant, Twaya Vienna AUTOMOBILE FARM MUTUAL
STATE COMPANY,
INSURANCE
Respondent.
No. CX-91-261. of Minnesota. Appeals
Aug. 16, 1991. Oct.
Review Granted Horn, Paul, appel- St.
Thomas F. Van lant. Cosgriff, Lee L. LaBore &
Brаdley T. Associates, Hopkins, respondent. Heard, decided considered and CRIPPEN, P.J., and NORTON SHORT, JJ.
OPINION SHORT, Judge. involving insurance
In a case the trial court argues Twaya McIntosh sum- granting a matter of erred as law Mutual for State Farm mary judgment (1) Company because Automobile Insurance compensated should be persons innocent use of an arising out of the for all (2) automobile, “acci- uninsured’s payment prerequisite is not a dent” disagree and af- no-fault benefits. firm.
FACTS to the facts. McIn- morning of October On the out- in his car boyfriend sat tosh’s former McIntosh, her minor her house. When side emerged from son, companion a male McIn- house, immediately got into they aр- The former car. *2 228 876, (Minn. King, 415 N.W.2d on foot and confronted v. 878-79
proached the car 1987). addition, furni- deny some household McIntosh does not regarding McIntosh boyfriend injuries by the former had a her caused an intentional Because ture. coat, away. boyfriend. McIntosh drove The act of her former gun his See Woida v. car, Cо., 570, got back his own Mut. N.W.2d boyfriend former North Star Ins. (Minn.1981). began chasing appeal McIntosh’s car. The and The issues on unsuccessfully attempted is boyfriend former this assault covered under whether policy car his car and insurance under parties’ to ram McIntosh’s or at her with a .38 caliber fired several shots Minnesota No-Fault Automobile Insurance Act, sped (1990). As two cars down revolver. Minn.Stat. 65B.41-.71 Be §§ pulled up interpretation highway, boyfriend the former of an cause insurance con along the McIntosh’s car and fired a questions side of tract and a statute involves law, boy- her. The injured may properly shot that former a trial court decide those degree judgment. was of first at- summary friend convicted issues on a motion for degree tempted appeal murder and first assault Our review de novo. See McIntosh, degree as- against Hibbing v. Employ second Educ. Ass’n Public against Bd., companion. 527, male sault McIntosh’s ment Relations 369 N.W.2d (Minn.1985); Kemper Iowa Ins. Co. v. State Fаrm insured McIntosh on While Stone, (Minn.1978). 269 N.W.2d 886-87 both the date of the incident for uninsured benefits, (UM) and no-fault motorist company coverage denied be- I. injuries cause McIntosh suffered were part of McIntosh’s relevant by the intentional acts of her for- caused policy states: boyfriend. mer McIntosh commenced this We pаy damages bodily injury will declaratory judgment against action State insured is entitled to collect from granted summary Farm. The trial court the owner or driver of an uninsured mo-
judgment
company,
for the insurance
con-
tor
underinsured motor ve-
cluding
policy
the insurance
did
afford
bodily injury
hicle. The
must
caused
either UM or no-fault
bеcause the
arising
operation,
out
of the
was
incident
“accident” within ei-
maintenance or use of an uninsured mo-
policy
ther the
or the Minnesota No-Fault
tor vehicle or underinsured motor ve-
Automobile Insurance Act.
hicle.
argues
McIntosh
the trial court erred in
ISSUES
granting summary
judgment
State
I.
Is the
intentional assault
McIn-
persons
Farm because innocent
who suffer
boyfriend
tosh’s former
covered
due
the intentional conduct of
policy?
always
uninsured motorists should
be com-
Is
II.
the intentional
McIn-
assault
pensated.
disagree. Every
insured
boyfriend
former
an “accident”
under the uninsured motorist
statute
en-
purposes
of no-fаult benefits?
titled to
such
as would be
if the
complied
available
tortfeasor had
ANALYSIS
requirements
with the minimum
of finan-
appeal
grant
summary
On
from a
responsibility
Apple-
cial
law. See 8C J.
judgment,
man,
Practice,
this court must determine
Insurance Law and
any genuine
(1981).
issues of material
5067.65 5086
Uninsured motor-
§§
fact exist
whether the trial
erred
complement
ist
was enacted as a
application
in its
liability coverage,
Couch,
law.
see 12A G.
Offerdahl
University
Clinics,
Hosps.
(rev.
Minn.
&
2d
Couch
Insurance
45:624
ed.
(Minn.1988).
1981),
provide
never
was
intended
liability
facts and
benefits where traditional
insur-
incident involved the
respond.
use
Apple-
ance would
See 8C J.
man,
automobile.
See Continental W. Ins. Co.
Insurance Law and Practice §§
(1984).
526, 530
We decline to fol-
is: If the N.E.2d
inquiry thus
5092.55
analysis
insur-
because uninsured motor-
had motor vehicle
low this
law,
his insur-
required by
provide
never intended to
ist
ance
is “no”
respond? The answer
liability
ance
where traditional
insur-
benefits
*3
himself
cannot insure
person
because
respond.
Apple-
8C J.
ance would
See
consequences of
having to bear
from
man, Insurance Law and Practice
5092.-
§
acts.
Minn.Stat.
intentional
See
his own
(1981).
55, at 394-97
None of these con-
deny
(1990). McIntosh does not
65B.60
why
§
trary opinions explains
uninsured ben-
inten-
boyfriend’s actions were
former
efits should cover more than would bе cov-
boyfriend
carried
tional. Had the
party
prop-
if
had
ered
the uninsured
been
law,
required by
the intention-
insurance as
erly insured.
policy
in his
would have
acts exclusion
al
Thus,
by
the assault McIntosh’s former
coverage.
precluded
is not covered
uninsured mo-
purpose of
analysis furthers the
because,
tоrist
insurance
had he carried
argues the
coverage. McIntosh
law,
required by
policy
his
acts exclusion
purpose of
intentional
coverage.
provide
Nor do we
would
by deny-
not furthered
liability policy
pur-
there was an “accident” for
believe
coverage to an innocent
ing first-party UM
pоses
of UM
for the reasons set
disagree. As
held in
we have
insured. We
forth below.
cases, “viewing intentional
separate
two
perspective of the insured
acts from the
II.
essentially ren-
under
UM
nugato-
intentional
exclusion
der
acts]
[the
us
The second issue before
is wheth
903,
ry.”
Croft,
v.
447 N.W.2d
Petersen
no-fault
er McIntosh
recover
benefits.
(since
(Minn.App.1989)
all occur-
905-06
McIntosh’s
states:
per-
unintended from insured’s
rences are
the No-
pay in accordance with
We will
perspective would
spective, relying on that
insured,
bodily
Fault Act for
to an
inten-
ability
insurers’
to exclude
“eliminate
resulting from the
caused
coverage”), pet
tionаl acts under UM
for
use of a motor vehicle as
maintenance or
(Minn.
12, 1990);
Jan.
Wilson
rev. denied
a vehicle.
Co., 451
Farm Mut. Auto. Ins.
v. State
requires
No-Fault Act also
The Minnesota
(since
216,
(Minn.App.1990)
218-19
N.W.2d
receiving
prerequisite
as a
an “accident”
per-
is intended from victim’s
no accident
65B.46,
1
Minn.Stat.
subd.
benefits. See
spective, using
perspective
would nulli-
(1990);
Farm
Edwards v. State
see also
exclusion), pet.
rev.
fy intentional acts
for
95,
Co., 399 N.W.2d
99
Ins.
Mut. Auto.
22, 1990).
(Minn.
are
Mar.
We
denied
rev. denied
(Minn.App.1986), pet.
many jurisdictions hold a con-
mindful that
13, 1987).
(Minn. Mar.
trary view.1 These other courts view
argues she should recover no-
McIntosh
standpoint and
incident from the victim’s
notwithstanding the fact thе
unforeseen,
fault benefits
unin-
conclude
intentionally shot her. See Mer-
tortfeasor
tended, unexpected and therefore “acciden-
Co.,
Ins.
343 N.W.2d
Bourbon,
Mid-Century
v.
122 Ill.
ic
Country
tal.”
Cos. v.
411,
688,
(Minn.App.1984)(recovery of no-
1061, 1067,
407,
690
78 Ill.Dec.
462
App.3d
Co.,
307,
See,
Casualty
Ins.
724 S.W.2d
e.g.,
Farmers & Merchants
Alabama Farm Bureau Mut.
1129,
Mitchell,
(Ala.
(Mo.Ct.App.1987);
v.
Nat 'l
Kish
Central
309-10
v.
373 So.2d
1136
Ins. Co.
48-49,
41,
Omaha,
1979);
Group
67 Ohio St.2d
Civ.App.
v.
Ins.
American Protection Ins. Co.
288,
(1981);
732, 733,
540,
Leatherby
Parker,
Ins. Co. v.
Ga.App.
424 N.E.2d
293
258 S.E.2d
150
553,
(Fla.Dist.Ct.
(1979);
Willoughby,
554-55
315 So.2d
v. State Farm Mut. Auto. Ins.
542
Davis
Roberts,
547, 550,
9,
(1973);
1975);
Co.,
App.
Co. v.
Nationwide Mut. Ins.
P.2d
10
264 Or.
507
654,
285, 291,
(1964);
Co.,
Family
Ill.App.3d
134 S.E.2d
Dyer
261 N.C.
v. American
Ins.
Doe,
632,
530, 537-38,
(La.Ct.App.
766, 773-74,
Redden v.
357 So.2d
512 N.E.2d
111 Ill.Dec.
549,
O’Connell,
542,
1978);
1071,
denied,
(1987),
v.
297 Mass.
app.
Wheeler
117 Ill.2d
553-54,
(1987);
also 1
See
9 N.E.2d
546-47
N.E.2d 1085
Hart
115 Ill.Dec.
Steenson,
Wolbarst,
No-Fault Automobile
Minnesota
Co. v.
95 N.H.
M.
Accident & Indem.
ford
Insurance,
(2d
1989).
40, 43,
(1948);
ed.
Keeler v.
30-31
57 A.2d
153-54
fault benefits widow of driver who was
1. Twice this court has said that exist-
attempting
shot
robber
and killed
ence
accident must be determined
get-
commandeer
ear for use
driver’s
the view of
from
the tortfeasor. Petersen
disagree.
аway).
Meric found the in-
Croft, 447
903 (Minn.App.1989),
jury
arose out of
“use” of the automo-
(Minn.
12, 1990);
pet.
rev.
Jan.
denied
bile,
690, an issue which the
see id. at
Co.,
v. State Farm Mut.
Auto. Ins.
stipulated.
did
here
Meric
(Minn.App.1990),pet.
Coverage does not lie for uninsured mo- of a motor vehicle.” Because of the similar torist benefits where would not coverage sections, in language both genu- lie had the tortfeasor carried insurance. ine interpret language effort contract corrеctly The trial court concluded “acci- treat topics must both alike necessary dent” is before vehicle motor addressing the accident and use issues. benefits will be available. Because there is Although coverage provisions the two in- insufficient causal connection between the public рolicy issues, volve different both giving act the injury rise to and the use of nearly language contain contract vehicle, identical a motor there is no “accident.” Thus, topics properly granted trial court of “accident” sum- and “mainte- mary judgment to State Farm. nance use” of a vehicle. While the prоvision indicates that
Affirmed. considered, tortfeasor’s vehicle be CRIPPEN, Judge (concurring specially). provision the no-fault coverage suggests I concur in that the decision insured’s vehicle use be to affirm the trial con- court, but with additional observations. sidered. This distinction is here irrelevant already tion both the insured and the tortfeasor deciding since determined that driving the insured was motor use cars when or maintenance is includ- injured. policy provisions ed under on that subject. policy here, Under the Although we choose to contradict coverage relates to an accident “arising out Wilson, I do not defend those Pеtersen of” use and maintenance. No-fault cover- merit, believe, decisions. There is in criti- age relates to from an accident already at them. cism directed See Wil- “resulting from” use or maintenance. It son, J., (Huspeni, dis- 451 N.W.2d at was this causative condition was treat- Also, senting). opinion, my the accident exрansively ed in Klug. Klug causation doctrine announced in Petersen adequate was found in circumstances not given anomaly unlike being those the case now re- analysis court’s of use and maintenance employ viewed. We should not a construc- Klug, Continental Western Ins. Co. v. tion language of accident to сontradict the (Minn.1987). This conclusion analysis causation in Klug. resolved requires a few additional comments rationale. Klug observed, It has been repeatedly course, Klug that the did not have an (1) undisputed here that pur- It is *5 accident issue before it and remanded for poses ap- of coverage, proceedings further question. on that injuries pellant’s operation, resulted from might imply While this that the intentional a motor maintenance use of act in considered that case could have been Taylor, (2) for purposes Robert and of no- accident, an a of narrow view accident lan- injuries of fault arоse out guage wholly seems at odds the ratio- maintenance or use of a motor vehicle. Klug Wilson, nale of on causation. See agree the court that J., (Huspeni, 451 N.W.2d at n. 1 dis- topic governed by maintenance and use senting). logic Consistent with the Klug. importance of I Klug, can find no reason to by appellаnt clearly suffered examine the tortfeasor’s state of mind to An of involved automobiles. examination if determine an accident occurred here. mind, de- tortfeasor’s state of however prior decisions on the accident issue fended, already leads us back issues appear premised give effort to be study A Klug. resolved of the tort- the contract reference to an accident some intentions, feasor’s ex- however otherwise Petersen, meaning. See 447 N.W.2d at plained, nothing study more than a easily 905-6. This concern misleads us. analysis, causation. Under this the inten- First, although we cannot envision a nonac- suggest tions of tortfeasor that injured person’s cident viewed from the his use of an automobile incidental done, perspective, language appellant’s may accident injuries harm or that causally thoughtlessly employed by have been in- Taylor’s were connected with Yet, perspective а Klug’s use of motor vehicle. surers with no different language, as a matter law the tort- mind. Intentional act exclusions have been driving shooting feasor’s “actions of employed historically to deal with miscon- inextricably Id. persons purchasing linked.” at 878. The duct of insurance. Also, before, this was held so even accidеnt observed doc- though it was requires exploring that the trine assault- which causation ing driver’s conduct was “the result of” his the Klug conflicts with construction of oth- illness. 877. language, mental Id. at er use and contract mainte- nance clauses. course, Normally speaking, of my opinion,
could involve use or maintenanсe of mo- 4. the decisions Peter- tor vehicle but still be caused some sen and cannot defended grounds circumstances other than an ordinary panels deciding mo- not stated tor vehicle It is important specifically, accident. to those More cases. do not observe, however, separаte that the issue of there legal causa- is merit in denying uninsured motorist
rationale for speculation Marriage about defini- coverage based on M. In re the of Glenna governed Petitioner, MAHONEY, have or exclusions that tions if he had been tortfeasor coverage Appellant, for the insured. that the First, remеmbered it must be MAHONEY, Respondent. T. Gene requires a similar language here contract analysis for No. C7-90-2734. Theorizing on the and no-fault benefits. Appeals of Minnesota. motorist nature of unwarranted distinction between risks an Aug. 1991. under one and the oth- accidents Review Denied Nov. er. important, uninsured motorist cov- More
erage pay damages is a contract
bodily injury an insured “is entitled the uninsured driver. This
to collect” from all of the uninsured addresses liabilities, not those the driver
driver’s or those covered
might be able to insure hypothetical the driver could
some purchased. This is also con-
sistent with Minnesota’s No-Fault Automo- *6 Act, defines unin-
bile Insurance which pro-
sured motorist as a
tect insureds “who entitled to damages” opera- from
recover owners
tors of uninsured vehicles. Minn.Stat. 65B.43, Theoretical con- subd. supplant
siderations cannot about statutory language gov-
contract and
ern issue.
NORTON, Judge (concurring part
dissenting part). majority regard with the to the
application of the Petersen and Wilson
cases to the uninsured motorist
issue.
However, I respectfully dissent from the
majority regard application
these cases to the no-fault issue. impression
This is a matter of first
Minnesota and we should not assume to
apply reasoning the same to this issue guidance
without clear from our
court.